Tuesday 30 September 2014

Reminder: personal copies, quotation and parody exceptions

A little reminder of the three copyright exceptions due to be implemented on 1 October:
  • Personal Copies for Private Use
  • Quotation
  • Parody
Personal Copies for Private Use

This exception, which does not apply to computer programs will permit the making of a personal copy of an individual’s own copy of a work, for that individual’s private use for non-commercial purposes.

The “individual’s own copy” means a copy that he or she has lawfully purchased (e.g. a CD, or a lawfully obtained download) on a permanent basis (i.e. does not cover “a copy which has been... streamed” though query what that even means – presumably streamed content is covered by the temporary copies exception in any event).

“Private use” includes making back up copies, format-shifting (i.e. copying CDs to digital), storage (i.e. cloud storage of lawfully purchased downloads, to the extent that these are stored in an area only accessible by the individual).

Copyright is infringed if the individual transfers their personal copy to another person, e.g. sharing of digital content is not caught by the exception.

Note that it is not possible to contract out of this exception.

So, clearly the personal copies exception is intended to legalise what everyone already does: convert analogue content to digital and to back up digital content. In that sense this exception is not controversial, however it will be interesting to see what creative applications for the exception are argued by content users. For instance if I lawfully acquire a physical copyright protected work, am I now permitted to reproduce that work using a scanner and 3D printer for my personal use at home? An example is mobile phone covers, which are likely to be protected by design rights rather than copyright, however I wonder whether this line of argument could be exploited, and whether it was considered by the legislators at the time of drafting?


This exception permits the use of a quotation from the work (whether for criticism or review or otherwise) provided that the work has been made available to the public, the use of the quotation is fair dealing with the work, the extent of the quotation is no more than is required by the specific purpose for which it is used, and the quotation is accompanied by a sufficient acknowledgement (unless this would be impossible for reasons of practicality or otherwise).
This means that short extracts of works which are already online (or indeed have been published offline) may be used without infringing copyright. There is no limit on how long the quotation may be, except that it must be “no more than is required”. There is no limit on the purpose of the use, except that it must be fair. This leaves the exception flexible yet arguably also restrictive.

The requirement that sufficient acknowledgement is limited to where it is not impossible “for reasons of practicality or otherwise” hints that in the online world it can be difficult to acknowledge authors who do not tag themselves as the author using conventional code which automated spiders can pick up on.

Again, it is not possible to contract out of this exception.


Finally the parody exception permits fair dealing with a work for the purposes of caricature, parody or pastiche.

There is no guidance as to the meaning of “caricature, parody or pastische”: will it be relevant whether a work is funny? If so who will judge whether a work is funny or not? Will moral or socially acceptable standards be relevant, and again if so who is to judge these? The case law may make for a fun read!

Again, it is not possible to contract out of this exception.

For more on the parody exception see Ben's recent blog post: Could ladybird bring the first copyright challenge?

Draft statutory instruments and supporting explanatory memorandum are available here:

1 comment:

Ben said...

Eleonora and Ben both get a mention in yesterday's Telegraph Article 'Mash-ups' now protected under copyright law - but only if funny - it's here http://www.telegraph.co.uk/technology/news/11127749/Mash-ups-now-protected-under-copyright-law-but-only-if-funny.html